United States v. Hing

decided: February 6, 1989.

UNITED STATES OF AMERICA, APPELLEEv.WONG CHING HING, DEFENDANT-APPELLANT

Appeal from judgment of the United States District Court for the Eastern District of New York, convicting appellant, on a conditional plea of guilty, of making a false statement in violation of 18 U.S.C. § 1001, and denying a motion to suppress statements made during an investigative detention. Judgment vacated and case remanded.

Feinberg, Meskill and Kearse, Circuit Judges.

Author: Feinberg

FEINBERG, Circuit Judge:

Wong Ching Hing appeals from a judgment of conviction in the United States District Court for the Eastern District of New York, following a conditional plea of guilty to making a false statement in violation of 18 U.S.C. § 1001. Wong reserved his right to appeal the district court's denial of his motion to suppress roadside statements made without Miranda warnings and subsequent statements made at a police station, which he alleges were the fruit of an unlawful arrest. For reasons indicated below, we vacate the judgment of conviction and remand.

Background

At approximately 2:00 p.m. on January 22, 1988, in the vicinity of Albany, a state trooper pulled a speeding Honda over to the side of the road. The car, in which Wong was a passenger, had no license plates and an expired registration, and the driver told police that he had borrowed it from a friend whose name he could not recall. The driver gave the trooper his international driver's permit; all the Honda's occupants appeared to be Asian and spoke Chinese. Wong waited in the Honda while the trooper took the driver to his patrol car and issued tickets for the traffic violations. Before returning to the Honda, the driver gave the trooper permission to search the car, and a second trooper arrived. While the first trooper searched the car, the second patted down the passengers for weapons and engaged in general conversation with them, during which Wong said that he was going to Buffalo to meet a friend at a mall and buy some property. The first trooper found two travel bags in the car with money in them, and a locked suitcase for which Wong volunteered the combination. Upon opening the suitcase, the police found more money, the top layer of which was concealed in carbon paper. Wong told the police that the money belonged to him and that there were $60,000 in the travel bags and $360,000 in the suitcase. When asked where he got the money, Wong replied "I'm rich," and said that he had brought the money with him, apparently from abroad, and had declared it at the airport. These statements were made within a half-hour after the car was stopped.

Because of the expired registration, the car was towed and impounded, and the troopers drove the driver and passengers to the nearest police substation. After arrangements were made for the driver's arraignment on the traffic charges, the three individuals from the Honda were driven to the Fonda police station. At the station, Police Lieutenant Kenneth Cook gave Wong his Miranda warnings, and Wong agreed to speak with him and State Investigator Owen Hughes. Wong told Lieutenant Cook and Investigator Hughes that the money was his, he had brought it from Hong Kong, and had declared it upon arriving in this country. When asked exactly how much money there was, Wong replied "twenty, twenty-eight." In answer to the lieutenant's question "twenty, twenty-eight what?" Wong said "you can find out." After this discussion, the lieutenant contacted federal agents. Shortly thereafter, Drug Enforcement Administration ("DEA") agent Robert K. Sears arrived at Fonda, and Wong told him the same information that he had given to the state police earlier. After his conversation with Wong, Agent Sears talked with federal agents and requested verification of the customs information to determine if Wong had actually declared the money upon his arrival at the airport. At no time during the entire afternoon was Wong handcuffed or restrained in any way. At approximately 9:00 p.m. the investigation at the airport revealed that Wong had not declared the money, and he was placed under arrest.

Wong was originally indicted for failing to declare the money upon his arrival in the United States. 31 U.S.C. §§ 5316(a), (b) and 5322(a). We are informed that after investigation established that Wong had not brought the money into the country with him, he was charged by a superseding information with making a false statement in a matter within the jurisdiction of a federal agency. 18 U.S.C. § 1001. Wong moved to suppress the money and other physical evidence seized from him as well as all statements made to law enforcement officials. After his motion to suppress was denied, Wong entered a plea of guilty, reserving his right to appeal the denial. The judge thereafter sentenced Wong to a term of imprisonment of time served and a fine of $2000 plus a $50.00 special assessment.

Discussion

On appeal, Wong challenges only the admissibility of his statements, and therefore we will not reach the issue of the physical evidence. Appellant argues that (1) statements he made to the trooper on the side of the highway should have been suppressed because he was not given Miranda warnings before he made them, and (2) his statements at the Fonda station should have been suppressed because they were the fruit of an unlawful arrest.

The district judge held that the statements made on the side of the road were admissible without Miranda warnings because the defendant was not in "custody" and his statements were free and voluntary. Like the district court, we believe that Berkemer v. McCarty, 468 U.S. 420, 437-39, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984), which held that Miranda warnings need not be given for interrogation during ordinary traffic stops, supports this holding. Although we realize that the roadside stop in this case may have been slightly longer than the stop in Berkemer, we agree with the district court that the extra time was "due primarily to the fact that the driver of the car had no registration and gave what were, to say the least, suspicious answers as to the ownership of the car." Wong had no reason to believe that he was under arrest or in custody at that time.

Turning to the occurrences at the Fonda station, the first set of statements made to the state police added nothing of substance to the statements appellant had made at roadside, which we have held admissible. The second set of statements made in the Fonda station, at 7:15 p.m., also added nothing of substance. However, they were made to the DEA agent and formed the basis of the information to which Wong pled guilty.*fn1 Because the later statements were merely repetitious of the earlier statements made on the roadside, we asked the parties to submit post-argument letter briefs on whether we could affirm on that ground, assuming arguendo that the road-side statements were admissible.

Appellant argues that we cannot affirm on this ground because the second set of statements at the Fonda station were not only the product of an unlawful arrest, but also were the only statements made to the DEA agent, thus forming the basis of the information to which Wong pled guilty. The government agrees that in view of the specific charge against Wong, we cannot affirm on the ground that the roadside statements and the later statements were substantially the same. Surprisingly, however, the government also informs us that the roadside statements could independently support a prosecution under the same statute, 18 U.S.C. § 1001, even though they were not made to a DEA agent. The government cites United States v. Yermian, 468 U.S. 63, 82 L. Ed. 2d 53, 104 S. Ct. 2936 (1984), United States v. Precision Medical Laboratories, Inc., 593 F.2d 434, 442 (2d Cir. 1978), and United States v. Candella, 487 F.2d 1223, 1225-27 (2d Cir. 1973), cert. denied 415 U.S. 977, 39 L. Ed. 2d 872, 94 S. Ct. 1563 (1974) for this proposition.

The chain of events here, of course, is not the usual situation, in which the first statement made by a defendant is inadmissible but later statements are not challengeable on any independent ground. In that situation, this court has held that the later statements were tainted by the first statement, which "let the cat out of the bag," and therefore could not be properly admitted. See United States v. Shelly, 430 F.2d 215, 218 (1970). In this case, however, the first statement was admissible, and not affected by a possible taint on the later statements. Therefore, it is at least arguable that any error in refusing to suppress the later statements is harmless since they were, at most, cumulative. However, while the argument might be persuasive in the abstract, we agree with the parties that it cannot carry the ...

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